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"We need to face up to new challenges"

Alison Brimelow talks about the EPO’s success story and why the Office needs to adapt to a moving landscape.

How does it feel to be President of the European Patent Office?

I’m happy to be here because I like a challenge. We have a lot to be proud of at the EPO – to put it in a nutshell, 30 years of success. I regularly describe this as one of Europe’s great success stories and I mean it. However, the next 30 years are going to be very different. The global patent system is changing and an organisation of 32 member states is not the same as seven.

Looking back on the years you have known the Office, how do you see it and how do you see its staff?

Let me start with the staff who in a sense are the Office. I have absolutely no doubt that this is a hugely competent and professional patent office which has established itself as an extremely strong presence. It has done a good job and if you talk to users of the patent system, they are very pleased with what has been achieved so far. They are watching very closely because our environment is changing and the question of backlogs and how we cope with demand is challenging. There is a lot out there which we need to understand better.

Could you elaborate on these challenges?

I have a consistent theme, which is that huge backlogs change the nature of the patenting system and create ambiguities which can be exploited in ways unforeseen by those who established the patent system. This is moving us away from the classic justification of the system. If you spend several years waiting for a decision, you and others can play “rich man’s poker”, taking a bet on what your rights are going to be and discussing your commercial relationships in the shadow of that pending set of applications. I use the phrase “rich man’s poker” very deliberately as this is a game much better suited to companies with long pockets than to the small. This means that SMEs have an additional struggle in terms of effectively deploying the fruits of their innovation.

That worries me a lot, and I have spoken about it in public. I am not clear that we will ever get ourselves back to the position that can be regarded as “healthy balance”. I think that the effect of backlogs in the use of intellectual property is probably irreversible, and that raises big questions for world patent offices.

More generally, there is the theme of quality and fitness-for-purpose of the patent system. I am very struck that people who are engaged with that system closely recognise that this high volume game is not particularly comfortable nor economically effective when viewed from the perspective of the public good. There is a set of assumptions about the direction in which we need to go which is simply not matched by the rhetoric that we need more patents in Europe. What we need are more good patents and possibly fewer patents overall. Look at how long patent life is these days: it’s declining.

Look at rates of abandonment: what comes in the door in no way matches what lives for 20 years. That is a significant operating challenge for us.
“Less is more” is very important, and we need to make sure that the patents that we grant are highly relevant, not marginal, and have a real utility, as opposed to being a sort of currency for the “rich man’s poker” game.

What needs to be done in order to effectively respond to future challenges in this area?

I don’t like looking backwards. We need to ensure that how we perform matches future needs. I want us to remain intensely competent – basic patent examining confidence and professional skill are part of a good patent office. We are world-class in terms of our professional competence. We ought to use that competence to be a shaper of where the global patent system goes next. There is no point in deluding ourselves that we are simply providing a European service. We are not. We are a global patent office in a global economy. All big patent offices are struggling with the same problem – accessing prior art and keeping backlogs under control.

Being prepared to “utilise” work, particularly the searches done by other offices, is both rational and essential if the patent system is to keep its head above water.

How do you see the EPO's role in the international scene and in Brussels?

I think the EPO (both the Organisation and the Office) should certainly be active: first as I have made clear already, the global IP environment is changing. Europe needs to engage proactively with that process. That means working effectively in and through the AC. Member states are our line of democratic accountability and their responsibilities in IP go wider than those of the Office. But on patents, the Office is uniquely knowledgeable and should use that knowledge to help Europe take the right decisions. Both the members states and the Office need to work effectively at every level with European institutions. That means listening, reflecting on what sort of IP framework will sustain and improve Europe’s growth and competitive position.

IP is not an end in itself. It serves an economic purpose. We need to ensure that what we do and how we do it serves that purpose and makes full use of the global standing of the EPO.

More generally, Europe is finding it difficult to reach closure on some of these dossiers. The message from industry is very clear, they want a Community patent, but they don't like what's on the table. There are also voices which say that they are absolutely certain that EPLA is exactly what they want, and others who have real reservations. But you have to get on with what you can, whether it's development of the European Patent Network or working more closely in the Trilateral with Japan and the US, and with the fast growing offices of China and South Korea. There are more than enough areas for improvement, and making progress wherever possible is what we need to give our energy to.

What do you want to have achieved with/for the EPO at the end of your Presidency? What would you wish your legacy to be?

I want this to be a confident and competent global patenting authority – the benchmark. The EPO has a future, in as much as the global patent system has a future.